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Relationships & the Law Today: Filing discrimination claims
GUEST COLUMN
by Timothy R. Herman
2015-10-28

This article shared 3166 times since Wed Oct 28, 2015
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On Sept. 15, 2015, the Illinois Human Rights Commission ( "Illinois Commission" ) found in favor of a downstate Illinois same-sex couple finding that a bed-and-breakfast discriminated against the couple by refusing to hold the couple's civil-union ceremony.

Pursuant to the Illinois Human Rights Act, it is improper to discriminate against individuals within Illinois on the basis of numerous classes, including sexual orientation, in connection with employment, real estate transactions, access to financial credit and the availability of public accommodations.

Under the Illinois Human Rights Act, sexual orientation means actual or perceived heterosexuality, homosexuality, bisexuality or gender-related identity. The Illinois Human Rights Act applies to persons living in Illinois, but it is important to note that certain counties and municipalities in Illinois may have their own governing bodies that enforce local rules applicable to persons living within that particular jurisdiction ( i.e. the Cook County Commission on Human Rights, the City of Chicago Commission on Human Relations, and the City of Evanston Human Relations Commission, etc. ).

In contrast, under federal law, discrimination on the basis of sexual orientation is not specifically recognized and enforced by the Equal Employment Opportunity Commission ( the federal agency that investigates claims of discrimination ).

For LGBT individuals residing in Illinois outside a jurisdiction with its own local ordinance, an individual discriminated against based upon sexual orientation in connection with employment, access to financial credit and the availability of public accommodations has one choice: file a charge with the Illinois Department of Human Rights within 180 days of the date of the discriminatory act. For discrimination involving real estate transactions, the charge must be filed within one year of the date of the discriminatory act.

For those individuals living in a jurisdiction with its own ordinance, the discriminated against individual can file a charge of discrimination in the Department of Human Rights within the same time periods referenced above or with the local governing body within the prescribed limitation period ( for individuals filing with the City of Chicago Commission, the time period is 180 days ).

It is important to note that for those individuals residing in Chicago or other municipalities in Cook County with a local ordinance, the local governing body rather than the Cook County Commission on Human Rights will investigate the claims. It is also important to note that the City of Chicago Human Rights Ordinance and Fair Housing Ordinance limits the definition of sexual orientation to the actual or perceived state of heterosexuality, homosexuality or bisexuality, but those ordinances separately prohibit discrimination based upon gender identity.

Considering the limitations and rules outlined above, on March 1, 2011, in Mattoon, Illinois ( located in downstate Coles County ) a same-sex couple ( "Plaintiffs" ) filed a charge of discrimination with the Illinois Human Rights Commission alleging that TimberCreek Bed and Breakfast ( "TimberCreek" ) ( located in Ford County ) discriminated against the couple.

Shortly after civil unions became legal in Illinois in early 2011, Plaintiffs began looking for a venue to hold their civil ceremony. The couple reached out to TimberCreek via email to ascertain whether the facility would host their ceremony, but the owner of TimberCreek responded and indicated that he would never perform such ceremonies because he believed homosexuality was wrong. In June 2011, the couple later held a civil ceremony at their home.

The Illinois Department of Human Rights found substantial evidence of discrimination based upon their investigation, which gave Plaintiffs the right to have the Department of Human Rights file a complaint on their behalf in the Illinois Commission. Both sides moved for a summary order requesting judgment in each party's favor. Note that if the Department of Human Rights had found a lack of substantial evidence, Plaintiffs could have filed a Request for Review with the Illinois Commission or filed a lawsuit in a circuit court in Illinois where the discriminatory acts were committed within 90 days after receipt of the Department of Human Rights' order.

The procedures vary slightly for discrimination in real estate transactions as a complaint is automatically filed with the Illinois Commission and the complainant may elect to have the claims decided in a circuit court in Illinois instead.

After reviewing the parties' submissions, the Illinois Commission granted a summary order in favor of Plaintiffs. TimberCreek argued that they made a business decision not to host same-sex civil unions because of their sincerely held religious beliefs, which would violate TimberCreek's and its owners' free exercise of their religious rights, speech rights and association rights.

The Illinois Commission found that forcing TimberCreek to host same-sex civil unions would not cause a substantial burden on its exercise of religion since the bed-and-breakfast would not be involved in performing the ceremony and the bed-and-breakfast allowed same-sex couples to rent guest rooms. This appears to be the first time the Illinois Commission clearly held that owners of businesses serving the public cannot choose who they serve based on their personal religious views.

It is important to note that the same result would apply if the owners of the bed-and-breakfast refused to accommodate a heterosexual ceremony based upon the owners' desire not to host a civil ceremony based upon the couple's heterosexuality. This same rationale would apply to the owner of a home or apartment who refused to sell or rent to a heterosexual individual or couple because they preferred to rent to a homosexual or bisexual individual or couple.

Under Illinois law, Timber Creek had until Oct. 20, 2015 to file a petition for review in the Illinois Appellate Court. The Commission also scheduled a hearing to determine Plaintiffs' damages and to allow Plaintiffs' attorneys to submit a fee petition since Plaintiffs are entitled to their attorney's fees incurred to obtain the relief sought. Plaintiffs were represented by the ACLU, Betty Tsamis, and Clay Tillack and Tai Chaiken of Schiff Hardin LLP.

Timothy R. Herman is an Associate at Clark Hill PLC and focuses his practice on business litigation, employment litigation, healthcare litigation and estate and trust litigation.


This article shared 3166 times since Wed Oct 28, 2015
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